Delhi District Court
Sh Roop Ram (Since Deceased) vs . Smt. Sunita Devi & Anr. on 7 February, 2020
Sh Roop Ram (Since Deceased) Vs. Smt. Sunita Devi & Anr.
CS No. 16601/16
IN THE COURT OF Sh TARUN YOGESH
ADDL. DISTRICT JUDGE:03:
SOUTH WEST DISTRICT: DWARKA COURTS:NEW DELHI
Civil Suit No. 16601/16
CNR No. DLSW010002462013
In the matter of :
Sh Roop Ram (Since Deceased)
Through LR Sh Rishi Pal
S/o Sh Kanhiya
R/o Village Nanak Heri,
Tehsil Mehrauli,
New Delhi. ... Plaintiff
Versus
1) Smt. Sunita Devi
W/o Sh Ramesh Kumar
R/o Village Nanak Heri,
New Delhi.
2) Sh Rai Singh
S/o Sh Roop Ram
R/o House No. 104, Village Nanak Heri,
New Delhi. ...Defendants
Date of Institution of suit : 21.03.2013
Date on which judgment was pronounced : 07.02.2020
: JUDGMENT :
1.Suit for mandatory injunction, possession and damages by way of amended plaint has been filed through Sh. Rishi Pal S/o late Sh.
Page 1 /11 DOD: 07.02.2020 Sh Roop Ram (Since Deceased) Vs. Smt. Sunita Devi & Anr.
CS No. 16601/16Ranjeet Singh.
2. Plaintiff Sh. Roop Ram had filed suit for mandatory injunction on 06.10.2004 by impleading Smt. Sunita Devi and his son Sh. Rai Singh as defendants No.1 and 2 for requesting to direct defendant No.1 to remove illegal and unauthorized construction raised over portion of plot shown in red colour and also prayed for damage @ Rs.1,000/ per month from the date of filing of suit till removal of encroachment by defendant No. 1.
3. Plaintiff's application under Order VI Rule 17 CPC for permission to file correct site plan and necessary amendment in the title and prayer clause for adding relief for decree of possession was allowed subject to cost Rs.5,000/ to be paid to defendant vide order dated 23.01.2013 passed by Ld. Civil Judge7/North/Tis Hazari Courts, Delhi which was affirmed by the Hon'ble High Court of Delhi vide order dated 16.12.2014 passed in C.M. (M) No. 507/2013 and C.M.No. 7634/2013 and plaint was directed to be returned to plaintiff for presenting before Ld. District Judge, South West Dwarka, New Delhi on 20.03.2013 in view of application under Order VII Rule 10 A CPC vide order dated 13.02.2013 passed by Ld Civil Judge7/North/Tis Hazari Courts, Delhi.
4. Plaintiff's case set out in the amended plaint filed through Sh. Rishi Pal is as under:
4.1 Plaintiff Sh. Room Ram (since deceased) and his sons Sh.
Rai Singh (defendant no.2), Sh. Mahender Singh and Sh. Narain Singh are co owner to the extent of 1/4th share each in plot of land measuring 1000 sq. yards in Khasra No.129/1, Village Nanakheri, Tehsil Mehrauli, Page 2 /11 DOD: 07.02.2020 Sh Roop Ram (Since Deceased) Vs. Smt. Sunita Devi & Anr.
CS No. 16601/16New Delhi.
4.2 Plaintiff and his sons being owner of 250 sq. yards each of land in aforesaid plot are occupying their respective portions whereas 30 sq. yards of land is under unauthorized and illegal possession of defendant No.1 which is shown in red colour while area measuring 220 sq. yards occupied by the plaintiff is shown in yellow colour and area belonging to defendant No.1 is shown in green colour in the site plan. 4.3 It is averred that defendant No.2 Sh. Rai Singh has sold his share/portion of land in the plot to defendant No.1 who has built pucca house by raising construction over area measuring 280 sq. yards, i.e. 30 sq yards in excess of 250 sq yards sold by defendant No. 2, on the front side of the plot of the plaintiff who is left with land measuring 220 sq yards shown in yellow colour in the site plan.
4.4 Plaintiff, having no other efficacious remedy, has therefore filed suit alleging that defendant No.1 has illegally and unlawfully encroached 30 sq. yards of land by raising construction over 280 sq. yards instead of 250 sq. yards sold to her by defendant No.2 and has inter alia prayed for :
(a) decree of mandatory injunction directing defendant No.1 to remove illegal and unauthorized construction raised over portion shown in red colour in the site plan;
(b) decree of possession of 30 sq yards of land in Khasra No.31/1 (old Khasra No.129/1), Village Nanakheri, Tehsil Mehrauli, New Delhi in his favour Page 3 /11 DOD: 07.02.2020 Sh Roop Ram (Since Deceased) Vs. Smt. Sunita Devi & Anr.CS No. 16601/16
and against defendant No.1 and
(c) recovery of damage @ Rs.1,000/ per month from the date of filing of suit till the date of removal of encroachment by defendant No.1.
5. Defendant No.1 Smt Sunita Devi has contested plaintiff's suit by filing written statement whereas defendant No.2 Sh. Rai Singh having appeared in person on 20.05.2013 has failed to appear and file his written statement and was eventually proceeded exparte on 11.10.2013.
6. Plaintiff's suit has been opposed by defendant No.1 by disputing his legal status and locus standi for requesting for rejection of plaint filed without any cause of action.
7. Defendant No.1 has objected plaintiff's suit as barred by time, laches and acquiescence by stating that superstructure over plot purchased from defendant No.2 is in existence since 1999 and plaintiff did not raise any objection at the time of raising construction over the plot which was very much in the knowledge of plaintiff and other family members including defendant No.2.
8. Defendant Smt. Sunita Devi, in addition, has also stated about boundary wall up to the height of 2 feet surrounding the plot which was sold to defendant No.1 who is bonafide purchaser of suit property/ plot measuring 250 sq. yards out of Khasra No.129/1 situated in lal dora of village Nanakheri, New Delhi and plaintiff did not raise any objection at the time of execution of sale deed of plot with boundary wall and/or at the time of raising construction in the plot.
9. Plaintiff's suit has been also opposed by disputing valuation Page 4 /11 DOD: 07.02.2020 Sh Roop Ram (Since Deceased) Vs. Smt. Sunita Devi & Anr.
CS No. 16601/16of suit for the purpose of jurisdiction and court fee and plaintiff's averments have been disputed in corresponding para of reply on merit.
10. Following issues were settled on 28.07.2014 after replication and completion of pleadings:
(1) Whether suit of plaintiff is without any cause of action against the defendant? ... OPD (2) Whether the suit is barred by law estoppal? ... OPD (3) Whether the suit is barred by limitation? ...OPD (4) Whether the plaintiff has not valued the suit property properly for the purpose of court fee and jurisdiction?
... OPD (5) Whether the defendant no.1 has not encroached upon the suit property? ... OPD (6) Whether the plaintiff is entitled for a decree of mandatory injunction thereby directing the defendant no.1 to remove illegal and unauthorized construction raised over the portion shown in red colour in the site plan? ... OPP (7) Whether the plaintiff is entitled for a decree of possession against the defendant no.1 in respect of the suit property comprising of 30 square yards in Khasra No. 31/1 (old Khasra no. 129/1), Village Nanak Heri, Tehsil Mehrauli, New Delhi as shown in red colour in the site plan? ... OPP (8) Whether the plaintiff is entitled for a decree of recovery of damages @ Rs.1000/ per month from the date of filing of the suit till removal of encroachment by the defendant number 1? .... OPP Page 5 /11 DOD: 07.02.2020 Sh Roop Ram (Since Deceased) Vs. Smt. Sunita Devi & Anr.
CS No. 16601/16(9) Relief.
11. Matter was thereafter listed for PE and five witnesses have been examined in support of plaintiff's case.
12. Sh. Rishi Pal (PW1) and publicwitnesses Sh. Mohan Lal and Sh. Rajbir (PW2 and PW3) have tendered their affidavits in evidence and relied upon documents referred as Ex.PW1/1 to Ex.PW 1/11 whereas Sh. Manoj Kumar (Patwari/SDM) and Sh. Sandeep Kumar, LDC office of Sub Registrar, Kapashera, Delhi have brought certified copy of fard of 'Register Karwahi Chakbandi' of village Nanakheri and original WILL and GPA dated 30.08.2006 executed by Sh. Roop Ram in favour of Sh. Rishi Pal which are referred as Ex.PW4/1, Ex.PW1/10 and Ex.PW1/9 respectively.
13. Defendant No.1 Smt Sunita Devi on the other hand has deposed as DW1 and examined publicwitness Sh. Paramjeet as DW2 for disputing plaintiff's averments and allegation of encroachment of 30 sq. yards of land.
14. No other witness has been examined by defendant No.1 and defendant's evidence was closed on the basis of statement of her counsel Advocate Sh. B.D. Sharma.
15. Matter was posted for final arguments and application under Section 151 CPC for reframing issue No. 5 was filed by Ld. Counsel for defendant No.1 on 02.12.2019.
16. Plaintiff's reply opposing defendants' application for reframing issue No.5 was filed on 27.01.2020 and matter is listed for submissions Page 6 /11 DOD: 07.02.2020 Sh Roop Ram (Since Deceased) Vs. Smt. Sunita Devi & Anr.
CS No. 16601/16upon application and final arguments.
17. Advocate Sh. Mrityunjay Kumar Singh for plaintiff and Advocate Sh. B.D. Sharma for defendant no.1 have addressed their submissions and defendant's application for reframing issue No.5 is dismissed as onus to prove her contention that superstructure has been raised over plot measuring 250 sq. yards with existing boundary wall purchased from defendant No. 2 has been rightly placed upon defendant No. 1.
18. I have heard their submissions and minutely perused pleadings and evidence of witnesses examined on judicial file. My issue wise finding are recoded below:
19. Issue No. (1): Whether suit of plaintiff is without any cause of action against the defendant? ... OPD Issue No. (2): Whether the suit is barred by law estoppal?
... OPD AND Issue No.(3):Whether the suit is barred by limitation?
...OPD 19.1 These issues are taken up together to be decided by one common finding.
19.2 Defendant No.1 Smt. Sunita has opposed plaintiff's suit on the ground of delay, laches, acquiescence, estoppel and barred by time in para 5, 6 & 9 of preliminary objections.
19.3 It is averred that 2 ft. high boundary wall was very much in existence in the year 1999 at the time of purchasing the plot and plaintiff Page 7 /11 DOD: 07.02.2020 Sh Roop Ram (Since Deceased) Vs. Smt. Sunita Devi & Anr.
CS No. 16601/16did not raise any objection at the time of construction being raised by defendant No.1 after purchasing the plot from defendant No.2. 19.4 Defendant No.1 Smt. Sunita and publicwitness Sh. Paramjeet has deposed that plot was surrounded by boundary wall up to the height of 2 ft. in their affidavits Ex.DW1/A and Ex.DW2/A tendered in evidence and insisted (testified) about existence of boundary wall of about 2 ft. during their crossexamination by plaintiff's counsel. 19.5 Defendant No.1 Smt. Sunita, nevertheless, has admitted that no document verifying existence of 2 ft. high boundary wall has been filed on judicial record and produced copy of sale deed dated 20.07.1999 referred as Ex.DW1/P1 and admitted that existence of boundary wall around the plot is not mentioned in the sale deed. 19.6 Sh. Rishi Pal (PW1) who has filed amended plaint after death of Sh. Roop Singh has deposed that facts of the case were told to him by Sh. Roop Ram in the month of July 2006 and also deposed to have purchased 1/4th share of Sh. Roop Ram by way of agreement to sell, Affidavit, Receipt, Possession Letter and GPA dated 30.08.2006 followed by SPA dated 02.09.2006. He has admitted that defendant No.1 having raised construction after purchasing the plot from defendant No.2 has started residing in the plot since 2001 and that no document or complaint has been filed to verify plaintiff's allegation of encroachment of 30 sq. yds. of land Finding: Since defendant No.1 Smt. Sunita had purchased plot measuring 250 sq. yds. from defendant No.2 Sh. Rai Singh in the year 1999 and Sh Rishi Pal (LR of Late Roop Ram) has admitted that all co Page 8 /11 DOD: 07.02.2020 Sh Roop Ram (Since Deceased) Vs. Smt. Sunita Devi & Anr.
CS No. 16601/16owners have raised construction in their respective portions and there is no document/ complaint to verify plaintiff's allegation of encroachment of any portion of Late Sh. Roop Ram so issues No. (1), (2) and (3) are decided in favour of defendant No.1.
20. Issue No. (4): Whether the plaintiff has not valued the suit property properly for the purpose of court fee and jurisdiction?
... OPD 20.1 Defendant No.1 Smt. Sunita has disputed plaintiff's valuation of suit for the purpose of jurisdiction and court fee in para 10 of preliminary objection and para 9 (i) and 9 (ii) of reply on merit. 20.2 Though plaintiff's valuation for relief of possession fixed at Rs.4,50,000/ being tentative market value of 30 sq. yds. of land has been disputed by referring to circle rate fixed by Government of NCT of Delhi but defendant No.1 Smt. Sunita Devi has neither testified about circle rate in her affidavit nor summoned and examined independent witness for disputing plaintiff's valuation of tentative market value of 30 sq. yds. of land.
Finding: Issue No. (4) is therefore decided against defendant No.1.
21. Issue No.(5): Whether the defendant no.1 has not encroached upon the suit property? ... OPD.
Issue No. (6): Whether the plaintiff is entitled for a decree of mandatory injunction thereby directing the defendant no.1 to remove illegal and unauthorized construction raised over the portion shown in red colour in the site plan? ... OPP.
AND
Page 9 /11 DOD: 07.02.2020
Sh Roop Ram (Since Deceased) Vs. Smt. Sunita Devi & Anr.
CS No. 16601/16Issue No. (7): Whether the plaintiff is entitled for a decree of possession against the defendant no.1 in respect of the suit property comprising of 30 square yards in Khasra No. 31/1 (old Khasra no. 129/1), Village Nanak Heri, Tehsil Mehrauli, New Delhi as shown in red colour in the site plan? ... OPP 21.1 These three issues are taken up together to be decided by one common finding.
21.2 Defendant No.1 Smt. Sunita Devi having averred and deposed about plot measuring 250 sq. yds. surrounded by 2 ft. high boundary wall has produced copy of sale deed dated 20.07.1999 and admitted that existence of 2 ft. high boundary wall is not mentioned in the title deed in her favour referred as Ex.DW1/D1. 21.3 It is, however, pertinent to note that no evidence of alleged encroachment of 30 sq. yds. of land other than site plan referred as Ex.PW1/1 and Ex.PW1/3 by PW1 Sh. Rishi Pal and site plan of defendant No.1 Smt. Sunita Devi referred as Ex.DW1/1 has been led in support of their respective contentions.
21.4 PW1 Sh. Rishi Pal during his crossexamination has categorically admitted that possession of portion of plot was given to him by Sh. Roop Ram during the pendency of suit and no document or complaint has been filed on record verifying encroachment of 30 sq. yds. of land by defendant No.1 Smt. Sunita Devi.
21.5 Neither draughtman who had prepared original site plan Ex.PW1/1 and second site plan Ex.PW1/3 has been summoned and examined in support of plaintiff's case nor PW1 Sh. Rishi Pal has Page 10 /11 DOD: 07.02.2020 Sh Roop Ram (Since Deceased) Vs. Smt. Sunita Devi & Anr.
CS No. 16601/16deposed about measurement of their respective plots being conducted through revenue officials in support of plaintiff's allegation of encroachment of 30 sq. yds. of land.
Finding: Encroachment of 30 sq. yds. of land by defendant No.1 Smt. Sunita could not be proved by plaintiff. Issue No. (6) and (7) are therefore decided against the plaintiff whereas issue No. (5) is decided in favour of defendants.
22. Issue No. (8) : Whether the plaintiff is entitled for a decree of recovery of damages @ Rs.1000/ per month from the date of filing of the suit till removal of encroachment by the defendant number 1? .... OPP Finding: Since alleged encroachment of 30 sq. yds. of land could not be proved by plaintiff so plaintiff is not entitled to recover any damage. Issue No. (8) is therefore decided against the plaintiff in view of my finding upon issue No. (6) and (7)
23. RELIEF: Plaintiff's suit for mandatory injunction, possession and damages is therefore dismissed.
24. Decreesheet be prepared accordingly.
25. File be consigned to record room. Digitally signed TARUN by TARUN YOGESH YOGESH Date: 2020.02.17 16:00:36 +0530 Announced in the open Court (Tarun Yogesh) On 07.02.2020 ADJ03/South West Dwarka /New Delhi Page 11 /11 DOD: 07.02.2020